Scottish woman launches legal challenge to use late husband’s sperm

A woman in Scotland has started a legal bid to use her late husband’s sperm for IVF treatment

The man, who died following a long term illness, had stored his sperm in 2011 before beginning treatment for cancer.

The couple was not married at the time he stored his sperm but wed before he became ill again. He sadly died last year.

Seven vials of sperm were frozen before he became ill and the woman hopes to begin IVF treatment if permitted by the Appeal Courts.

According to the Guardian newspaper, this is the first case of its kind in Scotland and is formed around whether the man gave effective consent for his sperm to be used to create embryos.

Specific consent

The court heard that the man had given specific consent for his sperm to be used for Intrauterine Insemination(IUI) but his condition deteriorated before it was discovered he had not given consent for the sperm to be used to create IVF embryos.

The woman seeks permission to use the sperm to create embryos, which has a greater degree of success than IUI.

Morag Ross QC told the court that the man, who cannot be named for legal reasons, had given his clear and concise consent in his will for his wife to have his sperm ‘made available for as long as possible and for as long as she may wish’.

She said this consent was not under dispute, telling the court ‘the wording tells us all we need to know.’ She said the man had no set qualification on how his sperm should be used, other than his wife having the final say over how long it should be stored for.

The Human Fertilisation and Embryology Authority‘s barrister, Christine O’Neill QC, said the regulator was not seeking to obstruct the woman but was unable to conclude that consent had been given.

The HFEA has extended the usual ten years maximum storage time for sperm by two years due to COVID-19 for anyone who is close to their storage limit.

The Scottish court will now consider all the evidence presented and a decision is due in the next few weeks.

 

 

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